Climate Resilience in Chemical Facility Risk Management

Clean Water Act Regulations

The Clean Water Act, as amended by the Oil Pollution Act of 1990, directs the President to “issue regulations which require the owner or operator of a tank vessel or facility . . . to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge of oil or a hazardous substance” (42 U.S.C. § 1321(j)(5)(A)(i)). In Executive Order 12777, issued on October 18, 1991, the President delegated this authority to the EPA Administrator. Pursuant to that delegation, EPA has adopted regulations requiring facilities that have the potential to cause major pollution to submit plans that include discharge detection systems, evacuation plans, response actions, and containment measures, among other things.

On March 28, 2024, EPA issued a final rule establishing new requirements for FRPs for worst case discharges of hazardous substances from onshore non-transportation related facilities that, because of their location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone. 89 Fed. Reg. 21,924 (Mar. 28, 2024). Among other changes, the new rule embeds consideration of climate-related risks into regulatory requirements for FRPs. For example, the rule provides that, in determining whether a facility could reasonably be expected to cause substantial harm to the environment by a discharge, EPA may consider the facilities potential vulnerability to adverse weather conditions resulting from climate change and whether the facility lacks measures or systems to enhance its resilience to climate change.

Biden Administration (2021-2024)

On March 28, 2024, EPA issued a final rule establishing new requirements for FRPs for worst case discharges of hazardous substances from onshore non-transportation related facilities that, because of their location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone. 89 Fed. Reg. 21,924 (Mar. 28, 2024). Among other changes, the new rule embeds consideration of climate-related risks into regulatory requirements for FRPs. For example, the rule provides that, in determining whether a facility could reasonably be expected to cause substantial harm to the environment by a discharge, EPA may consider the facilities potential vulnerability to adverse weather conditions resulting from climate change and whether the facility lacks measures or systems to enhance its resilience to climate change.

Litigation

Environmental Justice Health Alliance for Chemical Policy Reform v. EPA

On March 21, 2019, the Natural Resources Defense Council, Clean Water Action, and Environmental Justice Health Alliance for Chemical Policy Reform filed suit against EPA in the U.S. District Court for the Southern District of New York alleging violations of the CWA and Administrative Procedures Act. The plaintiffs alleged, among other things, that EPA had failed to issue CWA-mandated regulations requiring certain non-transportation-related facilities to plan, prevent, mitigate, and respond to worst case spills of hazardous substances. On March 12, 2020, EPA and the plaintiffs entered into a consent decree which resolved the claims of the suit. The consent decree required EPA to, within 24 months, issue a notice of proposed rulemaking for the issuance of CWA Hazardous Substance Worst Case Discharge Planning Regulations.